[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
March 29, 2006
No. 05-12607
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-00022-CR-RWS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KAREN KING,
a.k.a. Karen Jones,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(March 29, 2006)
Before MARCUS, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Karen King appeals her conviction for importing and trafficking in
counterfeit goods on the grounds that aggravating factors listed in her indictment
were unconstitutional and the district court erred in admitting evidence of her
previous conviction, supervised release status, and financial difficulties. Because
King failed to move the district court to strike the aggravating factors and the
probative value of the evidence of her conviction, supervised release, and financial
problems outweighed its prejudicial nature, we affirm King’s conviction.
BACKGROUND
King was a self-employed exporter and importer of goods for sale in and
outside of the United States. King ordered a shipment of athletic shoes from China
that was seized by Customs & Border Protections in June 1999 for bearing
registered trademarks of Nike. On January 14, 2003, a grand jury indicted King
for importing and trafficking in counterfeit athletic shoes. 18 U.S.C. §§ 545,
2320(a).
On June 11, 2003, a superceding indictment was returned and on August 10,
2004, the grand jury returned a second superceding indictment. The second
superceding indictment included two aggravating factors based on non-statutory
sentencing factors. The first aggravating factor was that the retail value of the
counterfeit items exceeded $70,000 and the second factor was that King committed
the offense while under a criminal justice sentence of supervised release. In 1996,
2
King had been convicted for uttering counterfeit money, and from February 1998
through March 2000, she had been under supervised release.
At no time before or during trial did King move to strike the aggravating
factors from the indictment. King instead stipulated to the facts regarding both
factors. The district court, with the parties’ consent, did not submit the aggravating
factors to the jury during trial or during jury deliberations.
Before trial, King moved to exclude the introduction of her previous
conviction. The district court held that the previous conviction could be introduced
under Federal Rule of Civil Procedure 404(b) for the limited purpose of showing
King’s state of mind and absence of mistake. The district court gave limiting
instructions to the jury when this evidence was introduced and when the jury was
charged on the law. The government also noted the limited nature of the evidence
during closing arguments.
At the opening statements, King argued that she mistakenly believed the
shoes were genuine and did not intend to import counterfeit shoes. During trial,
the government called King’s probation officer as a witness. The probation officer
testified, among other things, that King was having financial difficulties. King was
convicted and ultimately sentenced to seven months of imprisonment followed by
three years of supervised release.
3
STANDARD OF REVIEW
We review issues first raised on appeal for plain error. United States v.
Parrish, 427 F.3d 1345, 1347 (11th Cir. 2005). We review evidentiary rulings of
the district court for abuse of discretion. United States v. Ndiaye, 434 F.3d 1270,
1280 (11th Cir. 2006).
DISCUSSION
King raises three issues on appeal: (1) the district court failed to strike the
aggravating factors in the superseding indictment as “surplusage” in violation of
her Fifth and Sixth Amendment rights; (2) the introduction of evidence of her
previous conviction and supervised release status violated Federal Rule of
Evidence 404(b); and (3) the introduction of evidence of her financial difficulties
was unduly prejudicial. We address each argument in turn.
First, King argues that the district court plainly erred when it did not strike
the aggravating factors from the indictment. She argues that the aggravating
factors in the superseding indictment were surplusage because they are not
statutory crimes and that the use of these aggravating factors implicates her Fifth
Amendment right to indictment by a grand jury for infamous crimes and her Fifth
and Sixth Amendment rights to a fair and impartial trial. King’s argument fails.
The Federal Rules of Criminal Procedure do not permit the district court to
4
strike surplusage except on a motion by the defendant. Rule 7(d) states that
“[u]pon the defendant’s motion, the court may strike surplusage from the
indictment or information.” The Advisory Committee Notes to Rule 7(d) explain
that “[t]he authority of the court to strike such surplusage is to be limited to doing
so on defendant’s motion . . . .” Because King did not move the district court to
strike the factors as surplusage, she waived the right to complain on appeal that the
aggravating factors, the facts of which she later admitted, were included in the
indictment.
King’s related argument that the aggravating factors made the indictment so
defective as to deprive the district court of subject matter jurisdiction over the case
also fails. King’s argument is foreclosed by controlling authority. The Supreme
Court has held that “defects in an indictment do not deprive a court of its power to
adjudicate a case.” United States v. Cotton, 535 U.S. 625, 630-31, 122 S. Ct. 1781,
1785 (2002).
Second, King argues that the district court erred by admitting evidence of
her previous conviction and her supervised release status, but evidence of past
crimes or wrongs can be admitted at trial to establish the defendant’s state of mind,
intent, or lack of mistake. Fed. R. Evid. 404(b). Evidence of prior wrongs may be
admitted if it satisfies a three-part test: “(1) the evidence must be relevant to an
5
issue other than defendant’s character; (2) the probative value must not be
substantially outweighed by its undue prejudice; (3) the government must offer
sufficient proof so that the jury could find that the defendant committed the act.”
United States v. Ramirez, 426 F.3d 1344, 1354 (11th Cir. 2005) (citing United
States v. Hogan, 986 F.2d 1364, 1373 (11th Cir. 1993)). The first and third parts
are easily satisfied. The evidence of King’s previous conviction was admitted to
establish that King did not mistakenly believe the shoes were not counterfeit, and
King does not contest that she had been convicted.
The district court did not abuse its discretion when it concluded that the
probative value of the evidence was not substantially outweighed by its undue
prejudice. King placed her state of mind squarely at issue in her opening statement
when she argued that she received the counterfeit shoes as an accident or mistake.
The prejudicial impact was minimal because the testimony regarding King’s
previous conviction was of short duration, and the judge gave proper limiting
instructions to the jury.
Finally, King erroneously argues that the district court erred when it
admitted evidence of her financial difficulties. Rule 404(b) permits evidence of
motive. “[E]vidence of financial difficulties is admissible in fraud prosecutions to
demonstrate knowledge, motive, intent, design, and absence of mistake.” United
6
States v. Metallo, 908 F.2d 795, 798-99 (11th Cir. 1990).
CONCLUSION
King’s conviction is
AFFIRMED.
7